For individuals and businesses navigating the complex landscape of U.S. immigration, the phrase “discretionary factors” can often feel like an opaque and unpredictable element in an otherwise structured process. Many immigration benefits are not automatic; even if an applicant meets all objective eligibility criteria, an immigration officer retains the discretion to approve or deny the request based on a “totality of the circumstances” review. When immigration officers make decisions that involve discretion, they’re essentially weighing the good against the bad. They consider the totality of the circumstances in a case, rather than just a single factor. This discretionary analysis can involve looking at a wide range of things, including:

• Conduct and Character: This can include an applicant’s criminal history, or their positive contributions to the community.

• Family Ties: Officers may consider an applicant’s relationships with U.S. citizen or permanent resident family members.

• Immigration History: They will look at an applicant’s past compliance with immigration laws.

• Humanitarian Concerns: An officer may consider any humanitarian issues that might apply to a case.

Recently, U.S. Citizenship and Immigration Services (USCIS) has issued a new policy alert, PA-2025-16, clarifying how officers should apply this critical discretionary analysis. This guidance, which took effect on August 19, 2025, is particularly important for individuals seeking benefits that involve a discretionary review, such as waivers, adjustment of status, and certain employment-based petitions.

A Shift in Focus: What’s New in the Guidance?

The new policy alert reinforces a “totality of the circumstances” approach but introduces several key updates that emphasize national security and compliance with immigration laws.

• Significant Negative Weight to Anti-American Activities: The guidance explicitly states that USCIS will assign significant negative discretionary weight to cases where an applicant has endorsed, supported, or promoted terrorist organizations, anti-American ideologies, or antisemitic terrorism. This underscores a heightened focus on national security and signals that such activities can lead to a denial, regardless of other positive factors.

• Past Parole and Admission History: Officers will now explicitly consider whether an applicant’s prior requests for admission or parole were made in compliance with all applicable laws and regulations at the time they were filed. Any noncompliance will be weighed heavily as an adverse factor.

• Clarification for Employment-Based Cases: The policy clarifies that discretionary analysis in employment-based petitions is limited to specific categories. This includes National Interest Waivers (NIWs) under INA §203(b)(2)(B) and EB-5 investor petitions that involve issues of fraud, misrepresentation, deceit, or criminal misuse. This provides clear boundaries for when discretion will be applied in these complex business cases.

Why This Matters for Applicants

This new guidance serves as a crucial reminder that simply being eligible for a benefit is not always enough. The burden of proof remains on the applicant to demonstrate that a favorable exercise of discretion is warranted.

For a successful application, it is more important than ever to:

1. Be Thorough and Transparent: Fully disclose all relevant information and address any past issues, such as immigration violations or criminal history.

2. Document All Positive Equities: Provide robust evidence of your positive factors, such as family ties in the U.S., long-term residence, employment history, and community involvement.

3. Address Adverse Factors Directly: If you have negative factors in your history, work with your legal counsel to present a compelling case that includes evidence of rehabilitation, remorse, and how you have since become a person of good moral character.

How Cohen, Tucker + Ades Can Help

Navigating these complex discretionary factors requires a sophisticated legal strategy. At Cohen, Tucker + Ades, we stay abreast of all policy changes to provide our clients with the most up-to-date guidance. We specialize in preparing and presenting compelling applications that highlight our clients’ positive attributes while proactively addressing any potential challenges.

If you have an application that may be subject to a discretionary review, or if you have questions about how PA-2025-16 impacts your case, contact us for a consultation. We can help you build the strongest possible case for a favorable outcome.

Sources:

Policy Alert, SUBJECT: Clarifying Discretionary Factors in Certain Immigration Benefit Requests | U.S. Citizenship and Immigration Services